WENG & WAH AND ANOR

[2020] FamCA 501

FAMILY COURT OF AUSTRALIA

WENG & WAH AND ANOR [2020] FamCA 501

FAMILY LAW – COSTS – Where final property adjustment orders were made in August 2019 between the husband, the wife, and their adult son – Where the adult son has made an application that the husband pay his costs in the proceedings – Whether circumstances justify a costs order – Consideration of s 117 of the Family Law Act 1975 (Cth) – Where the circumstances do not justify an order for the husband to pay the adult son’s costs – Where the application is dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr B Weng

FIRST RESPONDENT: Ms Wah

SECOND RESPONDENT: Mr C Weng

FILE NUMBER: MLC 9718 of 2014

DATE DELIVERED: 19 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane
(written submissions only)

JUDGMENT OF: Forrest J

HEARING DATE: Last submissions received 25 May 2020

REPRESENTATION

THE APPLICANT: No appearance

THE FIRST RESPONDENT: No appearance

THE SECOND RESPONDENT: Self-represented

Orders

1. That the Application in a Case filed 11 September 2019 seeking an order for costs, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weng & Wah and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 9718 of 2014

Mr B Weng

Applicant

And

Ms Wah

First Respondent

And

Mr C Weng

Second Respondent

REASONS FOR JUDGMENT

1. On 16 August 2019, I delivered judgment and pronounced final Orders in these property adjustment proceedings between the husband, the wife and their only child, their adult son.

2. Those Orders adjusted the property interests of the husband and the wife. They dismissed the husband’s claims against his adult son and the companies and discretionary trusts controlled by his adult son. They dismissed the claims of the wife and the adult son against companies in which the husband has interests.

3. The husband has since appealed against the Orders I made and his appeal is yet to be heard by the Full Court.

4. The adult son has made an application that his father pay his costs in the proceedings. In an Outline of Submissions, clearly drawn by the adult son himself, he asks for an Order that his father pay him $250,000 for his costs and $100,000 “for the lost on mortgage and any amount that determined by the Court that thinks appropriate for the compensation of the adult son” (the adult son’s precise words). 

5. All three parties are Chinese, having migrated to Australia from the People’s Republic of China. English is not the adult son’s first language. Indeed, neither the husband nor the wife speak English to any commanding degree at all. Interpreters were needed for them during the trial.

6. I originally listed the son’s costs application for a hearing in Court before me. The husband sought and obtained an administrative adjournment on the basis that he was unable to travel to Brisbane from Melbourne due to illness. On the subsequent hearing date, restrictions in place due to the Coronavirus pandemic made it too difficult to hear the matter, particularly given the need for an interpreter. I vacated the hearing and made directions for the parties simply to file and serve any affidavit evidence they relied upon as well as their written submissions in respect of the application.

7. The applicant adult son filed a short affidavit and short written submissions he prepared himself. Nothing has been received from the husband, though I understand he opposes the application. So, to be clear, I do not consider it to be an undefended application.

8. Essentially, I understand the adult son’s submission to be that as the husband was wholly unsuccessful in respect to obtaining any orders as against property of the son, or companies and trusts controlled by the son, that a costs order against the husband is justified.

The Law

1. Pursuant to s 117 (1) of the Family Law Act 1975 (Cth) (“the Act”), each party to proceedings under the Act “shall bear his or her own costs”. That general provision is subject to exception where the Court “is of opinion that there are circumstances that justify it” in making such order as to costs as the Court “considers just” (s 117(2)). In considering what order, if any, should be made pursuant to s 117(2) the Court must have regard to the matters that are set out s 117(2A). Those matters are extensive and limited only by the requirement that the Court considers them relevant. Relevantly, they include the following:

   ·Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   ·Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   ·The conduct of the parties to the proceedings in relation to the proceedings, including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.

2. The applicant adult son has not referred in his written submissions to s 117(2A). I am unsure whether he has considered it. Respectfully, that does not matter. The applicant adult son adduced no evidence of any written offer or offers that he made to his father to settle the dispute between them. In fairness to the applicant adult son, he might very well retort “but my father applied for orders against me and my property and got none, so he was wholly unsuccessful. Why does the fact that I did not make a written offer to settle make any difference?”

3. I simply observe that there is no evidence of any written offer to settle ever having been made, even in circumstances where the adult son was represented by competent and experienced family law solicitors and counsel in the lead up to and at the final hearing. Any such offer, including one to desist from making a costs application if the proceedings against him were withdrawn, would have been a relevant matter to consider on this application.

4. That said, I otherwise have no hesitation in saying that I do not consider the circumstances in this case justify making an order that the husband pay the adult son any amount for his costs even though he did not succeed against the son.  A reading of my reasons for judgment will reveal that the Court was confronted with significant challenges in managing, hearing and determining the proceedings, not the least of which was the defiant unwillingness of all three parties, including, most relevantly, the adult son, to provide full and frank disclosure in the proceedings. Numerous Orders of the Court directed at the parties, including the adult son, during the years which it was being managed towards a trial, were blatantly and defiantly ignored. As I said in my reasons, ultimately, I considered the best approach in the matter was simply to list it for a trial and proceed to hear and determine it, despite the fact that it was not ready for trial, in the true sense, because of all three parties’ failure to comply with orders and fully and frankly disclose.

5. Additionally, my reasons reveal that I did not believe all of the evidence the adult son adduced. On some matters, I considered that he was being deliberately dishonest.

6. Finally, my reasons reveal that I referred the matter to the Commissioner of Taxation for consideration as to whether or not any further action could be taken to recover the hundreds of thousands of dollars in tax liabilities that went unpaid in the wake of the winding up of the companies that the adult son and his mother were involved with, whilst the successful business they operated through those companies was simply moved from one of those companies to the next and then to the next again with no consideration being paid therefore. I do not know if any action has arisen from that referral.

7. I will not make an order that the husband pay any of the adult son’s costs in the proceedings. Each of the parties should bear their own costs. The application for costs is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 June 2020.

Associate: 

Date:  19 June 2020